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Page 1
Adjustment of the City of Dallas. Vernon's Ann.Civ.St. arts.
1011g, 1011g(a, g).
Court of Civil Appeals of Texas, Texarkana.
Frederick G. CURREY et al., Appellants,
v.
Louis T. KIMPLE et al., Appellees.
No. 8599.
Dec. 28, 1978.
Rehearing Denied Feb. 27, 1979.
Action was brought seeking relief from two set back
variances granted by Board of Adjustment of City of Dallas,
which variances were granted so that property owners could
build a tennis court on their residential lot. The 191st
Judicial District Court, Dallas County, Spencer Carver, J.,
entered judgment that plaintiffs take nothing, and plaintiffs
appealed. The Court of Civil Appeals, Ray, J., held that: (1)
fact that owners wanted to build a tennis court on their
irregularly shaped property would not constitute a
self-created or personal hardship; (2) fact that existing
zoning ordinance permitted a reasonable use of the property
as a residence did not negate grounds for granting of
variance; (3) sustaining order granting variance was not
abuse of discretion; (4) since plaintiffs had not challenged
issuance of building permit by the building inspector they
did not exhaust their administrative remedies as to
contention that tennis courts are not a permissible use, and
(5) private tennis courts are a recreational use within the
primary use of property as a residential dwelling.
Affirmed.
West Headnotes
[1] Zoning and Planning
414k747 Most Cited Cases
747
[1] Zoning and Planning
414k749 Most Cited Cases
749
Where no findings of fact or conclusions of law were filed
in action challenging granting of variances from setback
requirements, all questions of fact would be presumed found
in support of judgment of the trial court and its judgment
would be affirmed by Court of Civil Appeals if it could be
upheld on any legal theory that found support in the
evidence. Vernon's Ann.Civ.St. art. 1011g.
[2] Zoning and Planning
414k703 Most Cited Cases
[3] Zoning and Planning
414k746 Most Cited Cases
746
Court of Civil Appeals review of district court's judgment
sustaining board of adjustment's granting of variance from
setback requirement was to determine whether trial court
abused its discretion; the same standard was to be applied in
reviewing trial court's action relative to denial of request for
temporary injunction. Vernon's Ann.Civ.St. art. 1011g(a, g).
[4] Zoning and Planning
414k618 Most Cited Cases
618
745.1
[4] Zoning and Planning
414k745.1 Most Cited Cases
(Formerly 414k745)
In zoning matters, neither the district court nor the Court of
Appeals are at liberty to substitute their opinion for that of
the zoning board of adjustment. Vernon's Ann.Civ.St. arts.
1011g, 1011g(a, g, k).
[5] Zoning and Planning
414k565 Most Cited Cases
565
Board of Adjustment of the City of Dallas is a quasi-judicial
body and in reviewing its actions the district court sits only
as a court of review by writ of certiorari. Vernon's
Ann.Civ.St. art. 1011g(a, g, k).
[6] Zoning and Planning
414k536 Most Cited Cases
536
A party complaining of action of a zoning board of
adjustment in granting a variance has burden of showing
that the decision is illegal, and in order to establish illegality
of the order the complaining party must present a very clear
showing of abuse of discretion. Vernon's Ann.Civ.St. arts.
1011g, 1011g(a, g).
[7] Zoning and Planning
414k703 Most Cited Cases
703
If substantial evidence supports the determination of a
zoning board of adjustment, the legality of the board's order
is established. Vernon's Ann.Civ.St. art. 1011g(a, g).
[8] Zoning and Planning
414k703 Most Cited Cases
703
703
Substantial evidence rule was standard of review on appeal
to district court from setback variance granted by Board of
The substantial evidence rule, as applied in reviewing
decisions of zoning boards of adjustment, is fulfilled if the
evidence before the trial court, as a whole, is such that
reasonable minds could have reached the conclusion that the
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Page 2
board must have reached in order to justify its action.
Vernon's Ann.Civ.St. art. 1011g(a, g, k).
[9] Zoning and Planning
414k686 Most Cited Cases
686
In district court proceedings challenging setback variances
granted by board of adjustment to enable property owners to
build tennis court on their residential lot, burden was on the
challengers to show that the board's order was illegal
because there was no evidence or a lack of substantial
evidence supporting the findings and order and that the
board acted arbitrarily because reasonable minds could not
have reached the conclusion that the board reached in order
to justify its action. Vernon's Ann.Civ.St. arts. 1011g,
1011g(a, g).
[10] Zoning and Planning
414k493 Most Cited Cases
493
Unnecessary hardship warranting variance relief from
setback requirements must be determined with regard to the
facts and circumstances of a particular case.
[11] Zoning and Planning
414k542.1 Most Cited Cases
(Formerly 414k542)
542.1
When faced with request for a variance, it is the duty of a
zoning board of adjustment to determine whether literal
application of the zoning ordinance to the particular piece of
property would be unreasonable in light of the general
statutory purpose to secure reasonable zoning; the
reasonableness test is viewed in light of the practical
difficulty of applying the ordinance to the property in
question.
[12] Zoning and Planning
414k703 Most Cited Cases
703
In reviewing decision of board of adjustment granting
variances and setback requirements the issue before the
district court was not whether there was an unnecessary
hardship, but whether, after examination of all the evidence,
the trial court could conclude as a matter of law that the
board of adjustment failed to have substantial evidence
before it on which it could have concluded that rigid
enforcement of the ordinance would work an unnecessary
hardship on the property. Vernon's Ann.Civ.St. art. 1011g.
[13] Zoning and Planning
414k497 Most Cited Cases
497
Fact that property owners wanted to build a tennis court on
their irregularly shaped property did not constitute a
self-created or personal hardship warranting denial of
requested variance from setback requirements; configuration
of the lot created the hardship and evidence did not reveal
that owners wanted the variance for personal reasons not
connected with the configuration of the lot.
[14] Zoning and Planning
414k497 Most Cited Cases
497
An example of a personal or self-created hardship
warranting denial of a variance from zoning regulations
might be a situation in which the owner of a square lot
divides it into two triangles and then tries to secure a
variance in order to sell the property at a high price.
[15] Zoning and Planning
414k493 Most Cited Cases
493
[15] Zoning and Planning
414k504 Most Cited Cases
504
Fact that existing zoning regulations permitted reasonable
use of property as a residence did not require denial of
variance from setback requirement for purpose of
constructing tennis court; owners were entitled to use their
property to its fullest as it relates to family dwelling and
place for family recreation, limited only by provisions of
valid statutes and ordinances; statute specifically authorized
variance procedure utilized by board of adjustment and city
council had authorized the board to grant unnecessary
hardship variances from setback requirements due to a
parcel's irregular shape. Vernon's Ann.Civ.St. art. 1011g(g).
[16] Zoning and Planning
414k746 Most Cited Cases
746
District court did not abuse its discretion in sustaining order
of board of adjustment granting variances from setback
requirements to enable owners of residential property to
construct tennis court where variance was necessary because
of pie-shaped configuration of the property, tennis court
could not be constructed in compliance with setback
requirements without encroaching on structures which were
present at time applicants acquired the property and shape of
lot made it difficult on which to arrange recreational
facilities in conjunction with preexisting structures and
owners did not want variance for personal reasons not
connected with configuration of the property. Vernon's
Ann.Civ.St. art. 1011g(k).
[17] Zoning and Planning
562
414k562 Most Cited Cases
Where city zoning ordinance granted appeal from building
inspector's decision to board of adjustment, the plaintiffs,
asserting that tennis courts were not a permitted use in
residential zoning district and that board exceeded its
authority in granting variance to setback requirements to
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Page 3
construct a tennis court, did not challenge issuance of the
permit, they had failed to exhaust administrative remedies
and, thus, redress to the courts was presently unavailable to
them.
[18] Zoning and Planning
414k304.1 Most Cited Cases
(Formerly 414k304)
304.1
A tennis court is an accessory use customarily incident to a
single-family dwelling which is permitted under a
single-family residential zoning classification so long as it
does not involve public or business activities; private tennis
courts are a recreational use within the primary use of
property as a residential dwelling.
[19] Zoning and Planning
414k304.1 Most Cited Cases
(Formerly 414k304)
304.1
Under Section 10-202 and Section 33-175 of the Dallas City
Zoning ordinance, private tennis courts are a permissible
accessory use in a single-family residential district. Vernon's
Ann.Civ.St. art. 1011g(g).
*510 Morris I. Jaffe, Hubert A. Crouch III, Wynne & Jaffe,
Dallas, for appellants.
Joseph H. Staley, Jr., Thomas W. Hughes, Locke, Purnell,
Boren, Laney & Neely, Dallas, for the Kimples.
Lee Holt, City Atty., Robert J. Young, Asst. City Atty.,
Dallas, for City of Dallas & Board of Adjustment.
RAY, Justice.
This is a suit seeking relief from two variances granted by
the Board of Adjustment of the City of Dallas (Board). The
variances were granted so that Mr. and Mrs. Louis T.
Kimple (Kimple), appellees (defendants), could build a
tennis court on their residential lot. The order of the Board
was appealed to the district court as provided by Article
1011g, Tex.Rev.Civ.Stat.Ann. (Supp.1978). Mr. and Mrs.
Frederick G. Currey, Dr. and Mrs. Heinz F. Eichenwald, and
Mr. and Mrs. Edgar C. Hughes, appellants (plaintiffs),
instituted suit against Mr. and Mrs. Louis T. Kimple, the
City of Dallas (City), and the Board of Adjustment of the
City of Dallas, appellees (defendants), seeking prohibitory
and mandatory injunctive relief and the setting aside of the
order of the Board granting the variances. Trial was to the
court without a *511 jury and judgment was entered that
appellants take nothing. Appellants have perfected their
appeal and submit two points of error for our consideration.
In their first point of error, appellants contend that the trial
court erred in sustaining the order of the Board because the
Kimples had not shown that they had suffered any
unnecessary hardship by a literal enforcement of the
governing zoning ordinance and that if the Kimples had
suffered a hardship, it was a hardship which they had
created and further that the existing zoning ordinance
permits a reasonable use of the Kimples' property, thus
negating any grounds for granting a variance. Also,
appellants contend that the Kimple property does not differ
from other tracts of land in the surrounding area such that its
development could not be the same as the other tracts.
Appellants' second point of error contends that the order of
the Board permits a use of Kimples' property not authorized
by the zoning ordinance and that the Board has usurped the
authority of the City in granting the variance.
The Kimples own a pie-shaped lot located in an area zoned
"resident-1 acre." The majority of the lots in the zoning
district are quadri-sided.
The Kimples purchased their lot in 1974 and employed an
architect to plan alterations and additions on the land. The
architect's plans showed how a tennis court would fit into
the improvements, but the architect advised the Kimples
that it would be necessary to get a variance from the Board
of Adjustment before the tennis court could be constructed
in view of the existing zoning ordinance. The architect
prepared a site plan showing location of the improvements,
including the tennis court. The Kimples sought the
variances and were granted same by the Board of
Adjustment in 1974. The granted variances consisted of ten
feet from the front yard and nineteen feet six inches from
the side yard as same related to the tennis court. In 1974, the
existing garage was converted into a playroom and a carport
fifty-two feet by twenty-eight and nine-tenths feet was built
and a cabana was constructed. The tennis court was omitted
and the 1974 building permit expired.
In 1977 the Kimples again appealed to the Board of
Adjustment for a variance for the purpose of erecting a
tennis court. The variance granted on this occasion was
twenty-four feet from the front yard and twenty feet from
the side yard.
The Kimples had been occupying their property as their
home for a period of two and one-half years prior to the
time of trial.
Appellants have sought no relief from the Board for the
building inspector's having issued the building permit on
July 29, 1977, allowing tennis court use upon the property.
On August 9, 1977, the trial court denied appellants' request
for a temporary injunction and dissolved the temporary
restraining order. Trial on the merits was had on August 18,
1977, and the trial court entered a take nothing judgment
against appellants. Thereafter, construction of the tennis
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court was begun.
[1] No findings of fact or conclusions of law have been filed
in this case. Under these circumstances, all questions of fact
are presumed found in support of the judgment of the trial
court and the trial court's judgment must be affirmed if it
can be upheld on any legal theory that finds support in the
evidence.
[2][3][4] In the present case, an appeal from the Board of
Adjustment to the district court requires the application of
the substantial evidence rule as the standard for review. Our
review of the trial court's judgment concerning the action of
the Board of Adjustment, is to determine whether or not the
trial court abused its discretion. That same standard is to be
applied in reviewing the action of the trial court relative to
denying the temporary injunction. The trial court and this
Court are not at liberty to substitute our opinions for that of
the Board. As was stated in Zoning Board of Adjustment v.
Marshall, 387 S.W.2d 714 (Tex.Civ.App. San Antonio
1965, writ ref'd n.r.e.), the following principles govern this
appeal:
*512 "(1) A legal presumption exists in favor of the
Board's order, and the burden of proof to establish its
illegality rests upon Marshall;
"(2) The Court, when considering the legality of the
Board's order must not put itself in the position of the
Board and substitute its findings for that of the Board,
even though the Court concludes that the overwhelming
preponderance of the evidence is against the Board's
decision;
"(3) The question on appeal from the Board's order is
whether or not there is any substantial evidence affording
reasonable support for the findings and order entered by
the Board, such being a question of law and not of fact. If
the evidence before the Court, as a whole, is such that
reasonable minds could have reached the conclusion that
the Board must have reached in order to justify its action,
the Board's action must be sustained. City of San Angelo
v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67 (1945);
. . ."
[5][6][7][8] The Board of Adjustment is a quasi-judicial
body and the district court sits only as a court of review by
writ of certiorari pursuant to Article 1011g(k),
Tex.Rev.Civ.Stat.Ann. (Supp.1978). The complaining party
has the burden of proof to show that the decision of the
Board is illegal and in order to establish illegality of an
order, the complaining party must present a very clear
showing of abuse of discretion. If the trial court finds there
is substantial evidence to support the Board's determination,
the legality of the Board's order is established. The
substantial evidence rule is fulfilled if the evidence before
the court, as a whole, is such that reasonable minds could
have reached the conclusion that the Board must have
reached in order to justify its action. Jacobson v. Preston
Forest Shopping Center, Inc., 359 S.W.2d 156, 159
(Tex.Civ.App. Dallas 1962, writ ref'd n.r.e.); Zoning Board
of Adjustment v. Marshall, supra.
[9] The burden was upon appellants in the trial court to
show that the Board of Adjustment's order was illegal
because there was no evidence or a lack of substantial
evidence supporting the findings and order entered by the
Board and that the Board acted arbitrarily because
reasonable minds could not have reached the conclusion that
the Board reached in order to justify its action. The trial
court must determine as a matter of law that the Board acted
arbitrarily and without justification. The test on appeal to
this Court is whether the trial court acted arbitrarily in
reaching its decision and thus abused its discretion.
Article 1011g(a), Tex.Rev.Civ.Stat.Ann. (Supp.1978),
empowers local city councils to create Boards of
Adjustment for their communities. The City of Dallas has
exercised this power and created the Board of Adjustment of
the City of Dallas by Division 29-100 of the City Zoning
Ordinance. Article 1011g(g), Tex.Rev.Civ.Stat.Ann.
(Supp.1978), defines the powers of the Board which
authorizes the Board to grant variances. Division 29-700(j)
of the City Zoning Ordinance empowers the Board to grant
variances.
[10][11][12] The evidence before the Board and before the
trial court shows that the Kimples sought relief by the
variance procedure from the literal application of the front
yard and side yard set-back requirements of the city zoning
ordinance due to the pie-shaped configuration of their lot.
The Board found that the set-back requirements, when
applied to the lot configuration, constituted an unnecessary
hardship to the Kimple property and thus granted the small
variances from rigid enforcement of the front yard and side
yard set-back requirements. The Board had made an on-site
investigation and was well aware of the problem involved.
Unnecessary hardship must be determined with regard to the
facts and circumstances of the particular case. It is the duty
of the Board to determine whether literal application of the
zoning ordinance to the particular piece of property would
be unreasonable in light of the general statutory purpose to
secure reasonable zoning. The reasonableness test is viewed
in light of the practical difficulty of *513 applying the
zoning ordinance to the property in question. The issue
before the trial court was not whether there was an
unnecessary hardship, but whether the trial court, after
examination of all the evidence, could conclude as a matter
of law that the Board failed to have substantial evidence
before it upon which it could have concluded that the rigid
enforcement of the zoning ordinance would work an
unnecessary hardship upon the Kimple property. The trial
court had before it evidence that the tennis court could not
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be constructed in 1977 in compliance with the front yard
and side yard set-back requirements of the City without
encroaching upon structures on the property which were
present at the time Kimple acquired the property in 1974.
Further, the fact that the lot was rather triangular in shape
would make it difficult on which to arrange various
recreational facilities in conjunction with the pre-existing
structures. The Board could see that the development of the
Kimple property would require variances different from the
surrounding rectangular or near rectangular lots.
[13][14] The fact that appellees wanted to build a tennis
court on their irregularly shaped property would not
constitute a self-created or personal hardship. The
configuration of the lot created the hardship. The evidence
does not reveal that the Kimples wanted the variance for
personal reasons not connected with the configuration of the
lot and neither does the evidence reveal that the hardship
was self-created. An example of a personal or self- created
hardship might be a situation in which the owner of a square
lot divides it into two triangles and then tries to secure a
variance in order to sell the property at a high price. In such
an instance, the hardship would be self-created and if the
owner could not sell the triangular pieces of property
without the variance, then the hardship would be personal.
[15] Appellants' argument that since the existing zoning
ordinance permits a reasonable use of the Kimples' property
as a residence, then the grounds for granting a variance are
thus negated, is not persuasive. The Kimples are entitled to
use their property to the fullest as it relates to a family
dwelling and place for family recreation, limited only by the
provisions of valid statutes and ordinances. In this case,
Article 1011g(g) specifically authorizes the variance
procedure utilized by the Board and the City Council has
authorized the Board under Division 29-700(j) to grant
unnecessary hardship variances from set-back requirements
due to a parcel's irregular shape.
usurped the zoning authority of the city council is without
merit. That issue was not before the Board on July 26, 1977.
The building inspector issued the building permit for the
tennis court on the Kimple property on July 29, 1977, and
the building inspector's decision has gone unchallenged. The
city zoning ordinance grants an appeal from the building
inspector's decision to the Board by aggrieved parties. Since
appellants have not challenged the issuance of the building
permit by the building inspector, they have not exhausted
their administrative remedy and redress to the courts is thus
not available to them at this time. City of Dallas v.
Gaechter, 524 S.W.2d 400, 404-405 (Tex.Civ.App. Dallas
1975, writ dism'd).
*514 In addition to appellants' inability to raise the issue
that tennis courts are not a permitted use in the Kimples'
zoning district, for failure to exhaust their administrative
remedy, we have concluded that appellants' argument is not
persuasive. This Court decided in Hardy v. Calhoun, 383
S.W.2d 652 (Tex.Civ.App. Texarkana 1964, no writ), that a
tennis court is an accessory use customarily incident to a
single family dwelling which is permitted so long as it does
not involve public or business activities. We construe
Section 10-202 and Section 33-175 of the Dallas City
Zoning Ordinance to permit private tennis courts as an
accessory use in a single-family residential district. We
further hold that private tennis courts are a recreational use
within the primary use of property as a residential dwelling.
Thomas v. Zoning Board of Adjustment of City of
University Park, 241 S.W.2d 955 (Tex.Civ.App. Eastland
1951, no writ).
Appellants' second point of error is overruled.
The judgment of the trial court is affirmed.
577 S.W.2d 508
END OF DOCUMENT
Appellants' further argument that the Kimple property does
not differ from other parcels of land in the same zoning
district does not comport with the evidence. Most tracts in
the zoning district are rectangular while the Kimple tract is
pie-shaped.
[16] It is the conclusion of this Court that the trial court did
not abuse its discretion in sustaining the order of the Board
of Adjustment. Appellants did not show a clear abuse of
discretion by the Board and we are convinced that
substantial evidence was before the Board and the trial court
which would support the legality of the order entered by the
Board. Appellants' first point of error is overruled.
[17][18][19] Appellants' second point of error asserting that
the Board permitted a use of Kimples' property not
authorized by the Zoning Ordinance such that the Board had
Copr. © West 2003 No Claim to Orig. U.S. Govt. Works